Category: Fees

The City of Woodbury, Minnesota is a growing suburb of Saint Paul. To reduce the public burden of road construction to new subdivisions, the city passed an ordinance in 2016 which provides that the city may not approve a proposed subdivision if it is deemed “premature.” The city may deem a subdivision “premature” if streets “to serve the proposed subdivision” are not “available,” which is defined as streets “existing or readily extended and funded” as “consistent with the phasing in the comprehensive plan.”

However the city provides that a new development without existing road infrastructure may be deemed mature if the developer is willing to “pays its own way” and “all associated costs” for “public infrastructure” will “be the sole responsibility of the developing property owner.” To determine these associated costs, the city has allocated undeveloped land into three phases, each of which has an estimated associated cost per acre associated for “increased traffic and trips that are generated” by expected development in that area. This fee is referred to as a “major roadway assessment” or MRA and is used as the starting point for a negotiated agreement with developers.

Martin Harstad, of Harstad Hills Inc., submitted an application to to develop 77 acres of phase – two land into a 183 – home residential community called “Bailey Park on July 23, 2015. The city informed Harstad about certain deficiencies in the application. Harstad remedied the majority of them and was then informed by the city that the remaining deficiencies where relatively unimportant. This is significant because once the city receives a complete application under Minnesota law, if it does not deny that application with cause, it is automatically approved. After receiving the cost estimate from the city for the major roadway assessment, Harstad challenged the ability of the city to collect this fee in court. He also made a takings claim, arguing that the city had deprived him of use of his property without compensation. Finally he claimed that his application had already been approved as the statutory period that the city had to deny the claim had elapsed.

The district court found for the city on the latter two claims. The permit was not entirely complete, therefor the statutory period had never begun. The court also found that Harstads takings claims were immature as the permit had never been fully submitted nor had the fee been collected. The court did however find that the city had no power to collect fees to pay for road infrastructure.

The City of Woodbury appealed this decision to the Minnesota Court of Appeals.

The Minnesota Court of Appeals focused its analysis on the question of the power of Woodbury to collect a “major roadway assessment.” The City of Woodbury is a statutory city; thus, it “has no inherent powers beyond those expressly conferred by statute or implied as necessary in aid of those powers which have been expressly conferred.”

The city argues it has express authority to impose the MRA under the plain language of Minn. Stat. § 462.358, subd. 2a . Section 462.358, subdivision 1a, provides that “a municipality may by ordinance” regulate the subdivision of land to , among other things, facilitate “adequate provision for transportation.” Minn. Stat. § 462.35 8, subd. 1a . Subdivision 2a states , in relevant part:

The standards and requirements in the regulations [authorized by subdivision 1a] may address without limitation : the size, location, grading, and improvement of lots, structures, public areas, streets, [and] roads . . . . The regulations may prohibit the issuance of permits or approvals for any tracts, lots, or parcels for which required subdivision approval has not been obtained.

The regulations may permit the municipality to condition its approval on the construction and installation of sewers, streets , electric, gas, drainage, and water facilities, and similar utilities and improvements or, in lieu thereof, on the receipt by the municipality of a cash deposit.

The city maintains that subdivision 2a’s “open-ended language” unambiguously authorizes it to condition subdivision approval on a developer’s agreement to pay an MRA that funds necessary road improvements “without limitation on location.”

The Court disagrees. This section only authorizes city planning not the collection of a fee to cover road construction costs. The Court pointed out the legislature has explicitly authorized municipalities to assess water and sewer connection charges against developers to fund public water and sewer improvements made necessary by development. The legislature has never made similar provisions for roadways.

The court agreed with the district court finding that although the city had communicated with Harstad that the remaining deficiencies in his application were minimal, the fact that they were never corrected meant that the statutory period in which the city had to approve or deny the application never began.

Finally the court affirmed the district courts denial of Harstad’s taking claim. The permit has not yet been denied nor has the major roadway assessment been collected, so no taking could have occurred.

The City of Woodbury has appealed to the Minnesota Supreme Court which accepted to hear the case. A date for oral argument has not been set.

The Village of Twin Oaks in St. Louis County, Missouri (population approximately 400) is home to an 11 acre park with walking trails, a lake, waterfall, gazebo, and a “Claude Monet-style” bridge. This picturesque park offers a number of good backdrops for photographs. Especially after renovations and upgrades in 2011, the park became an extremely popular location for commercial photography. Sometimes as many as eight photographers and their subjects were competing for locations in the park at the same time. The large numbers of wedding parties began to dominate park facilities including using the restrooms as dressing rooms. Some photographers had subjects pose in dangerous areas or even set up outdoor studios for, “shooting multiple subjects in an assembly-line fashion.”

To limit the disruption caused by this activity to other users of the park, the local Board of Trustees erected signs notifying photographers of the previously existing ordinance prohibiting all commercial activity (including photography) in the park. They also asked the county police officer who enforces the village’s ordinances to remind commercial photographers of the ordinance and ask them to leave. Josephine Havlak a local professional photographer filed a lawsuit against the city claiming that the ordinance was a violation of her First Amendment right of free speech. She claims that commercial portraiture conveys, “an expressive message in a manner similar to the work of American portrait painter John Singer Sargent.”

In response to the lawsuit, the Board of Trustees amended its park ordinance to create a permit process for the commercial use of park facilities. The permit costs $100 and its issuance is based on five factors including: (1) risk of damage or injury, (2) disruption of the public’s use of the park, (3) crowding due to anticipated attendees, (4) the nature of the requested activity, and (5) the time and duration requested for commercial purposes. The Board members expressed that this permitting process helped to balance the interest of commercial photographers with other park users. The permitting fee helps to fund the administration of the permit, including especially the increased burden that commercial users place on police officers. Havlak, however, was not satisfied with the permitting process and, although she has never applied for a commercial permit, amended her lawsuit to request that the permitting process be struck down as an overbroad violation of the First Amendment. The district court denied Havlak’s request, and she appealed to the Federal 8th Circuit Court of Appeals.

Courts generally permit content-neutral restrictions that place “time, place, or manner” restrictions on protected speech, but any sort of prior restraint like a required permit does draw the court’s scrutiny. A previous decision by the 8th Circuit stated that: “Any permit scheme controlling the time, place, and manner of speech must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication.” The permitting process must also contain “narrow, objective, and definite standards” The court used these elements to analyze the ordinance.

Content Neutrality Any restriction on speech that regulates content is subject to a higher level of scrutiny. The factors used to determine whether a permit will be issued by the Village of Twin Oaks do not include the content of any commercial speech. Nevertheless, Havlak claims that the higher burden on commercial photographers, restricts her message of “family, peace, tranquility, and love.” The court did not find any evidence that the Village showed any intent to discriminate against these or any other values.

Narrowly Tailored In restricting speech, courts require that laws be “narrowly tailored” to serve a significant government interest. In this case, the government interest is clearly to reduce congestion and maintain park safety. Havlak argued that the law was not narrowly tailored in four ways: (1) it applies to groups of all sizes no matter how small (2) it does not focus solely on areas with a history of congestion (3) the application period (2 days for small groups, 14 days for larger groups) could chill artistic expression, and (4) the administration fee is too high. In all four cases the court found that the law was in fact narrowly tailored to advance government interests.

Ample Alternatives Restrictions on the time place and manner of protected speech are generally allowed as long as ample alternatives are present. Havlek argued that this park is so unique that no alternative venue could possibly exist. The court pointed out that the natural attributes of the park exist throughout the St. Louis Metro Area and that Havlak had not even used this park before she knew of the ordinance despite doing hundreds of photo shoots a year.

Licensing Discretion When regulating protected speech a law must contain “narrow, objective, and definite standards” to guide the licensing authority. This is to prevent the government from having too much discretion to discriminate against speech they find objectionable. Havlak argued that the ordinance is “impermissibly vague” and that the Village has unconstitutionally broad discretion to approve or deny permits. Here too the court sided with the Village finding that the factors used to determine whether a permit would be issued are sufficiently specific to guide the issuance of permits.

In the end, the court concluded that the Village of Twin Oaks’ permitting process survives constitutional scrutiny. Despite this permitting process, Havlak remains free to express her message of family, peace, tranquility, and love.

In 2010, the City of Mission, Kansas enacted a transportation user fee on all improved real estate. The fee was to be used for street maintenance and repair. The fee was imposed on owners of developed property and calculated based on an estimate of vehicle trips generated by the size and use of a building. Only real property exempt from property or ad valorem taxes, such as churches, were exempt from paying the fee. If the fee was not paid, additional fees and interest would be assessed and a lien could be placed on the property.

Heartland Apartment Association, Inc. and others filed a lawsuit challenging the legality of the fee. The district court ruled in favor of the City on all counts, declaring the fee was a tax that was legally adopted by ordinance under the City’s power of home rule. Heartland appealed, contending the fee was an illegal excise tax. The issue at hand was whether Mission’s fee is really a tax, and, if it is a tax, if it is one that can be legally levied by a municipality under Kansas law.

The Kansas Court of Appeals first noted that the distinction between a fee and a tax is not determined by the label given it, but rather the nature and function of the charge.

[A] tax is a forced contribution to raise revenue for the maintenance of governmental services offered to the general public. In contrast, a fee is paid in exchange for a special service, benefit, or privilege not automatically conferred upon the general public. A fee is not a revenue measure, but a means of compensating the government for the cost of offering and regulating the special service, benefit, or privilege. Payment of a fee is voluntary—an individual can avoid the charge by choosing not to take advantage of the service, benefit, or privilege offered.

Using this principle, the Court determined the City’s “fee” to be, in reality, a tax. Every landowner must pay the fee when they pay property taxes; no landowner can opt out of the fee unless they are exempt entities from property taxes. Failure to pay the fee may result in a lien, potentially leading to a sheriff’s sale of the property. Thus this fee is a “forced contribution.”

Furthermore, the landowners required to pay the fee do not receive special benefits or services. Transportation infrastructure is a common good provided to all members of the general public, such as police and fire protection, and is enjoyed by landowner and non-landowner alike.

Having determined that the fee was a tax, the Court then examined whether it was a tax that the City had the authority to levy. The Home Rule Amendment of the Kansas Constitution grants cities the power to determine their local affairs and government. Under the Home Rule Amendment cities are allowed to exempt themselves from a state statute by adopting either an ordinary or charter ordinance; however, there are limits to this opting-out process. Cities are prohibited from opting out of (1) enactments of statewide concern which are uniformly applicable to all cities; (2) other legislative enactments uniformly applicable to all cities; (3) enactments uniformly applicable to all cities of the same class that limit or prohibit “the levying of any tax, excise, fee, charge or other exaction”; and (4) legislative enactments prescribing limits of indebtedness.

Under Kansas law, K.S.A. 12-194, cities cannot levy or impose an excise tax or a tax in the nature of an excise tax. This law applies uniformly to all cities, but no definition is given for “excise tax” or “in the nature of an excise tax.” After reviewing the legislative intent of K.S.A. 12-194 the Court concluded that “the legislature has enlarged what taxes are prohibited to such an extent that this tax can be no other tax than an excise tax and is thus prohibited by law.” The Court based their decision on a change of the statute in 2006 that removed language limiting the prohibited taxes to those imposed on transactions. The result was that the term “excise tax” has come to mean “practically any tax which is not an ad valorem tax.” The Court found the transportation user “fee” enacted by the City of Mission was an excise tax, and as such was prohibited by law.

Yesterday the US Supreme Court declined to hear the appeal of the city of Des Moines in its franchise fee case, blogged here. The Iowa Supreme Court ruled in March that the city’s 5-percent fee on utility bills was beyond that allowable as reasonably related to the administration of electric and gas franchises, and that the excess must be returned to the people who paid it.

In the last twenty years, Hamilton Township in Ohio has experienced significant growth in its population and development. In response to the growth, the Township adopted a resolution that required potential developers to pay impact fees in order to apply for and acquire a zoning certificate to develop in an unincorporated area. The stated purpose of the impact fee was “to benefit the property by providing the Township with adequate funds to provide the same level of service to that property that the Township currently affords previously developed properties.”

The fee included four categories: a road-impact fee, a fire-protection impact fee, a police-protection-impact fee, and a park-impact fee. The amount assessed to each property was determined by its use. Properties to be used for single-family dwellings were assessed a total of $6,153 while those being developed for retail/commercial purposes were assessed a $7,962. The money received was placed into separate accounts (one for each category) not put into the general fund. The funds in each account may be used only for the purpose of each account.

Drees Company, among others, alleged that the impact fees are contrary to Ohio law and are unconstitutional. Hamilton Township is a limited-home-rule township that may “exercise all powers of local self-government within the unincorporated area of the township…and shall enact no other taxes other than those authorized by general law.” Drees Company argued that the impact fee is really a tax and, therefore, the Township was not authorized to enact the resolution. The trial court ruled in favor of the Township. It stated that Hamilton Township “may make and fund improvements to benefit new development by use of its system of impact fees, because the resolution is not in conflict with any other Ohio statute, and because it is sufficiently narrowly tailored to provide services to the class of fee payers in exchange for the fees.” The Court of Appeals affirmed, noting that the impact fee did not constitute a prohibited form of taxation. Drees further appealed the case.

In this case, the Supreme Court of Ohio had to distinguish a fee from a tax. It looked to precedent in its analysis to note how the two have been historically contrasted. In State ex rel. Petroleum Underground Storage Tank Release comp. Bd. V. Withrow, the Court looked to “the substance of the assessments and not merely their form.” It had to determine whether assessments imposed on owners and operators of underground storage tanks (“USTs”) were taxes. The stated purpose of the fees was “to reimburse owners and operators of USTs for the costs of corrective actions in the event of a release of petroleum into the environment and to compensate third parties for bodily injury and/or property damage resulting from such occurrences.”

In Withrow, the Court determined the assessments to be fees for four reasons: (1) the fees were imposed to further regulatory measures to address environmental problems caused by leaking USTs; (2) the funds were never placed in general funds and were to be used strictly for problems related to USTs; (3) the fee was in exchange for protection from UST leaks; and (4) if the fund exceeded a certain amount, no assessment would be charged that year. The Court noted that, when applying the factors from Withrow to this case, the impact fees seem to constitute taxes. The fees lack any sort of regulatory function, can be spent on typical township expenses, are not in exchange for any particular service, and are not responsive to need.

The Court next looked to Am. Landfill, Inc. v. Stark/Tuscarawas/Wayne Joint Solid Waste Mgt. Dist., where the Sixth Circuit Court of Appeals was faced with a similar situation. It had to determine wither assessments imposed by Ohio solid-waste-management districts on people disposing of waste were fees or taxes. The fees were to be used for various things pertaining to the county’s waste management plan. The court employed a three-factor analysis that considered (1) the entity that imposes the assessment; (2) the parties upon whom the assessment is imposed; and (3) whether the assessment is expended for general public purposes, or sued for the regulation or benefit of the parties upon whom the assessment is imposed.

The Court noted that an assessment imposed by a legislature is more likely to be a tax than one imposed by an administrative agency. Furthermore, an assessment imposed upon a broad class of parties is more likely to be a tax than one imposed on a narrow class. The third factor, the use of the assessment, is the predominant factor. Applying the Am. Landfill test to this case points to the fact that the impact assessments constitute taxes. They were imposed by a legislative body, not an administrative one. They were also imposed on a fairly large group of people. Furthermore, the funds were to be used for public benefit, not solely for the benefit of those property owners.

The Court noted that an essential question was whether the assessments were for public or private benefit. It noted that the goal of the assessment was “for the township to have the necessary funds to allow all properties in the township to maintain their same level of service despite recent, rapid growth.” The resolution itself stated it was for “the protection of the health, safety, and general welfare of the citizens and property owners of the Township.” Consequently, the Court concluded that the assessments constituted a tax and were therefore not authorized. It reversed the decision and remanded it to trial court.

In 2004, the City of Des Moines considered raising property taxes to hire more police and firefighters, maintain the library’s hours, and rehabilitate deteriorating neighborhoods. The City realized the state was phasing out sales and use taxes on residential gas and electric services and determined that it would be possible to increase the franchise fees on these services to raise revenue. After deciding this source of revenue was preferable to an increase in property taxes, the City renegotiated the franchise agreements with MidAmerican Energy and increased the franchise fee beginning June 2005. Lisa Kragnes promptly filed a lawsuit on behalf of herself and all others similarly situated challenging the franchise fees as illegal taxes. She sought reimbursement for all illegal taxes paid through the allowable statute of limitations and sought an injunction prohibiting the City from charging such franchise fees in the future. In the first suit that came before the Supreme Court the Court determined that a city has the authority to assess a franchise fee expressed as a percentage of the gross receipts derived from the utility’s sale of its services to the public, so long as the charge is “reasonably related to the reasonable costs of inspecting, licensing, supervising, or otherwise regulating the activity that is being franchised.” The case was sent back to district court to determine whether all or part of the franchise fees were reasonably related to the City’s administrative expenses in exercising its police power. It was also up to the district court to determine whether a class should be certified (which would allow all City of Des Moines utilities customers who paid the electricity or gas franchise fee from July 27, 1999, forward to be represented in a single action). The district court did, in fact, certify the class and determined that a portion of the franchise fee collected was excessive. The court held the City must refund to the class, with interest, the amount by which the franchise fees exceeded $1,575,194 per year for the electric utility and $1,574,046 for the gas utility (an amount that would cost the city roughly $40 million). The court retained jurisdiction to determine the details of how the refund would be calculated and refunded to class members. Both the City and Kragnes appealed.

Certifying class. The City first contended the district court should have granted its motion to decertify the class because a conflict of interest exists between Kragnes, as the class representative, and Des Moines property owners who will suffer economically as a result of a judgment in favor of the class. Specifically, the City contended that if the City is required to refund the roughly $40 million in excess tax that was collected from 2004 until 2009, it will need to raise the revenue for this payment from property taxes. This puts Kragnes and class members in a fundamental conflict over the litigation because property owners would tend to oppose Kragnes’s refund objective because they benefitted from the collection of the excessive franchise fees from payors who were not property owners. The Court sided with Kragnes, stating that the City’s position was “rife with speculation” —beginning with speculation about what City leaders would have done in the past and ending with predictions about what City might do to raise revenue to pay the refund. In light of this the district court did not abuse its discretion in certifying the class. The Supreme Court further observed:

The litigation of this case has resulted in two Supreme Court opinions, a forty-nine page district court decision after a fourteen-day bench trial involving the testimony of twenty-eight witnesses, including eight experts—three for the City and five for Kragnes. The record fills five bankers’ boxes. However, Kragnes’s claim standing alone would likely fall within the jurisdictional limit of the small claims court. We think this case demonstrates the very necessity and importance of class action litigation both for the plaintiffs and for the City. The likelihood of a plaintiff bringing such a complex suit requiring substantial resources to litigate in small claims is highly unlikely. And if she, and scores of thousands of others like her, did bring their claims individually, it could easily overwhelm the legal department of the City and the resources of the Polk County district court….

It also determined that sufficient procedural safeguards exist to protect individuals when members are not given the option of excluding themselves from the class.

Proper amount of expenses. Both parties disagreed with the categories and amounts of expenses that the district court counted as “reasonably related” to the administration of electric and gas franchises during the relevant time period, an amount which totaled nearly $1.574 million annually for the gas utility and $1.575 million annually for the electric utility. After a lengthy review of the various costs claimed by the City (lost value of trees, indirect operating costs, construction costs paid by other governments, others) the Supreme Court concluded that the amounts the City were entitled to collect in franchise fees were $1.47 million annually for the gas utility and $2.1 million annually for the electric utility (still resulting in an overcollection by the city of roughly $35 million).

Refund to customers. Finally, the City contended the district court erred in concluding the plaintiff class is entitled to a refund. Citing with approval a 1990 U.S. Supreme Court case, the Iowa Supreme court reasoned that there must be financial consequences from the illegal taxation of the City’s residents notwithstanding that the funds received from the illegal taxation of the City’s residents were used wisely, legally, and with the best intentions for the residents. “Because exaction of a tax constitutes a deprivation of property, procedural safeguards are generally required to protect against “unlawful exactions in order to satisfy the commands of the Due Process Clause.” The Court further noted that Kragnes filed the case soon after the City decided to commence collecting the franchise fees. On notice of Kragnes’s claim that the franchise fees were illegal, the City nonetheless collected them and even increased the amount of the fees collected. “The failure of the City to respond differently after it was on notice of Kragnes’s claim does not mitigate in favor of depriving Kragnes and the class of a remedy for the unlawful taxation.”

The Newells own property in the Village of Otter Lake on which sits a structure with a working septic system. In 2004, the Village created a special assessment for its public sanitary sewage system. The Newells were assessed $10,475; however, they were of the opinion that the assessment should not be applied to them so they filed a complaint with the Michigan Tax Tribunal. During the time between when the Newells filed their complaint and the time of their hearing, the Village enacted an ordinance that changed the definition of an “available public sanitary sewer system.” Under the new definition any public sewer system that “crosses, adjoins, or abuts a parcel upon which a structure is located” is considered an “available public sewer system” regardless of how many feet the system was from the structure it services or could potentially service. This ordinance differed from the previously governing state statute (MCL 333.12751 (c)), which “available public sanitary sewer system as “a public sanitary sewer system located in a right of way, easement, highway, street, or public way which crosses, adjoins, or abuts upon the property and passing not more than 200 feet at the nearest point from a structure in which sanitary sewage originates.”

At the Tax Tribunal trial, the Newells argued that the assessment was unjust because they received no benefit from the sewer system (they did not connect to it, nor did they need to connect to it). The tribunal upheld the assessment and the Newells paid it. Since they did not connect to the system, however, they refused to pay the operation and maintenance fees that were due each quarter thereafter. When they were notified of their delinquency on the operation and maintenance fees, the Newells filed a claim in circuit court arguing that the ordinance was preempted by the previously governing state statute, that the fee violated the Headlee Amendment, and that the assessment violated the right to equal protection under the Michigan Constitution. The court ruled in favor of the Village, finding that the preemption claim could have been resolved in the tax tribunal hearing so the court was prohibited from ruling on it. Additionally it found that, although a municipality is not allowed to enact ordinances that conflict with state statutes, it is free to make ordinances that expand on them.

On appeal, the Newells again made a preemption claim arguing that the state statute preempted the Village’s ordinance. They were of the opinion that they were not required to connect to the public sewer system (per the state statute MCL 333.12751 (c)) because their structure was located more than 200 feet from it. The Court disagreed, finding that the Village’s ordinance was not in conflict with the state statute but merely expanded on it, which is allowable. Thus, the Village’s ordinance was not preempted by the state statue. The Court further noted that, in matters of public health such as a sewer system, municipalities act as an agent of the state in the regulation of such systems.

Citing People v. Llewellyn, the Newells additionally argued that this area of regulation was one in which state law has exclusive jurisdiction. This argument rested on the fact that MCL 333.12751 was not included in the list of sections that the statute specified as being expandable by municipalities. The Court rejected this argument, finding that the statute clearly anticipated changes by local governments. It further found that the fact that the section was not listed did not equal a declaration that the state’s statutes were the exclusive governing power in that area.

The Newells also argued that the fee violated the Headlee Act, which prohibits municipalities from enacting a tax that was not authorized by state law, and from increasing an already authorized tax without a majority vote. The Court found that since the fee is “serving a regulatory and not a revenue-raising purpose,” it is not considered a tax. Consequently, the Headlee Act does not apply to it. The Court affirmed the lower court’s decision in favor of the Village.